ARTICLE 19 and CIVICUS welcome the Federal Court’s decision today, 1 July, ruling that Section 9(5) of the Peaceful Assembly Act (PAA) 2012 is unconstitutional and invalid. The five-judge panel of the Federal Court reached this unanimous decision to annul Section 9(5). The court found that Section 9(5) of the PAA imposes a punishment that exceeds the limits permitted under Article 10(1)(b) of the Federal Constitution. The section was described as ‘a disproportionate intervention’ that amounted to a prohibition rather than a restriction on guaranteed rights.
ARTICLE 19 and CIVICUS have consistently argued that Section 9(5) is unconstitutional and violates the right to peaceful assembly as well as international human rights law and standards.
It is not a crime to failure to notify before an assembly
The question before the court on 1 July was whether it is constitutional to criminalise an organiser for failing to notify the police five days in advance before holding a peaceful assembly. The court ruled that it is unconstitutional to impose such a criminal penalty on an organiser.
Former Malaysian United Democratic Alliance (MUDA) Secretary General, Amir Hariri Abdul Hadi brought the constitutional case before the court after he was charged under the Section 9(5) of the PAA for failing to give notice under Section 9(1), in connection with a protest gathering that was held on 14 August 2022, on the littoral combat ship (LCS) linked to corruption scandal. On 8 August, 2024, the Kuala Lumpur High Court allowed Amir’s challenge against Section 9(5) to be heard by the Federal Court.
Section 9(1) of the PAA requires organisers to notify the police at least five days before a peaceful gathering. According to Section 9(5), failing to provide this five-day notice is considered an offence, and if convicted in court, the individual may face a maximum fine of RM10,000. But today’s ruling has confirmed that this section of the PAA is unconstitutional and invalid.
Today’s decision is also important because, previously, the Court of Appeal reached two different decisions in two different cases regarding the constitutionality of Section 9(5).
In 2014, the Court of Appeal reached a landmark decision in the case of Nik Nazmi vs Public Prosecutor, where it that declared section 9(5), a provision that penalises organisers of peaceful assemblies with a fine of up to RM10,000 if they fail to provide the requisite 10 days’ notice, as unconstitutional.
However, in 2015, the Court of Appeal, in the case of Public Prosecutor vs Yuneswaran Ramaraj, unanimously ruled that Section 9(5) is consistent with Article 10(1)(b) of the federal constitution, thus rendering the need for any organiser to give notice to the police prior to the date of assembly.
Today’s verdict will strengthen the right to peaceful assembly and is also in line with international human rights standards. In 2012, the UN Special Rapporteur on freedom of assembly and association reiterated that if organisers fail to notify the authorities, the assembly should not be automatically dissolved, and the organisers should not face criminal or administrative penalties, including fines or imprisonment. The decision will also ensure that those organising spontaneous protests are not criminalised.
Our organisations have also raised concerns that police have consistently treated the notification process as a form of authorisation, which has led to many assembly organisers being investigated or charged even after their assembly or protest had ended peacefully.
Freedom of assembly is for everyone
The verdict today an important reminder that people have an unequivocal right to participate and organise peaceful assemblies and that the authorities must facilitate, not obstruct, this right. Protests and assemblies empower people to make their voices heard beyond the ballot box.
The police and government must respect the Federal Court decision and recognise that the right to peaceful assembly and freedom of expression is crucial and must be upheld consistently, without any double standards. It must also revise the PAA to bring it in line with international standards. Everyone should have the same opportunity to express their views, regardless of their political stance.
For further information:
Nalini Elumalai, Senior Malaysia Program Officer, [email protected]